Capitulo III: Metodología de la Investigación
3.11 Respuestas a las entrevistas de rusos residentes en Ecuador
2.1 Self-determination as a process for legitimizing decolonization
After the inception of the United Nations in 1945, the right to self-determination was included in an international legal framework for the first time. From the references in the United Nations Charter in 1945, Article 1 (2) and 55 mentioned “respect for the principle of equal rights and self-determination of peoples”.182 The meaning of ‘peoples’ was unclear as the classification of people was linked to territorial status. The international community legally recognized three dependent territories where local populations were authorized to express their will on territorial alteration: colonial peoples,183 peoples in Non-Self Governing Territories (NSGT), and peoples
in Trust Territories (TT).184
In practice, the right to self-determination was only applied to decolonization of non- European territories (i.e. Asian and African territories). The goal of colonial powers to
182 United Nations Charter 1945 (n 71) Article Charter 1(2) The Purpose of the United Nations are: (2) to develop friendly
relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
Article 55 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ……
183 UNGA Res 1514 (n 38) para5; UNGA Res 2625 (n 38) principle 5 para2 (b); Brad Roth, Governmental illegitimacy in
international law (Oxford 2000) 223
184 United Nations Charter 1945 (n 71) Article 73,76; UNGA 1541 (XV) (n 38) Principle VI; Antonio Cassese, (n 65) 57; Karen
51 free new independent states ignored the subsequent complicated situations of those new states because the right to self-determination was not exercised as an ongoing process.185 Furthermore, the process of decolonization was not concerned with restoring the ethnic links of the people living in former colonial territories. Consequently, the populations of former colonies were disenfranchised through the reshaping of boundaries by colonizers who provided little choice for those concerned regarding their membership of a new state.186
Between 1945 and 1960, the right to external self-determination was made equal to the right to independence. Under the scope of the UN General Assembly Resolution 1514 (1960), external self-determination was invoked as a tool “to legitimize the termination of colonial rule”.187 The decolonization process was the first time in history that colonial people were granted the right to be consulted about the alteration of their own territory without being dominated by an alien governmental authority.188 According to the resolution, the colonial people should be able to determine their future destiny.189 However, the resolution did not specify any practical suggestions for
how to consult the people and ascertain their will. In other words, there was still no international legal recommendation for public involvement processes to allow colonial people to participate in decisions which would affect their future status.
Later, the UN General Assembly 1541 (1960) attempted to rectify this by outlining practical public involvement processes for consulting the people in NSGT and TT
185 Marc Weller, ‘The Self-determination Trap’ (2005) 4(1) Ethnopolitics 12 186 Lee C. Buccheit, (n 124) 103
187 Antonio Cassese, (n 65) 71 188 UNGA Res 1514 (n 38) para5 189 Ibid para5
52 territories.190 However, the UN General Assembly only stipulated three options:
integration with an independent state, free association with an independent state, and independence.191 Moreover, only the first and second choices required ‘informed and democratic processes’ as prerequisite conditions of becoming either integrated or associated with an independent state. There was no such ‘informed and democratic process’ required for consulting local populations when they expressed the desire to become an independent state. Due to this lack of an international legal framework for guaranteeing the people’s involvement in such decisions, there was an ongoing discussion about how to create a ‘free and fair process’ to measure the will of the people. This raised the problem of how to balance and accommodate the people’s demands whilst maintaining the stability of territorial state borders.
International lawyers, such as Pomerance, Hannum, McCorquodale, and Thornberry argued at this point therefore that external self-determination required an internationally-defined framework to ensure that in practice, the people could exercise their right to political participation.192 When the people become an integral part of
territorial alteration, any self-determination process is made more legitimate.193 In other words, all people, without distinction of ethnicity, race, religion, or language difference, are not excluded from participating in deliberative decision-making. People are conceived of as a unit of collective decision-making towards the right to self-determination. Both direct and representative forms of public participation are involved in validating the people’s will under the scope of this right.
190 UNGA 1541 (XV) (n 38) principle VI and VII
191 Ibid principle VI; Antonio Cassese, (n 65) 73; Michla Pomerance, Self-determination in law and practice (Martinus Nijhoff
1982) 24; Lee C. Buccheit, (n 124) 92
192 Michla Pomerance, (n 191) 75; Hurst Hannum, ‘The right of self-determination in the twenty-first century’ (1998) 55(3)
773,776; Robert Mc Corquodale, (n 50) 857, 865, 885; Patrick Thornberry, ‘The Democratic or internal aspect of self- determination with some remarks on federalism’ in Christian Tomuschat (ed.), (n 76) 101-103
193 Helen Quane, (n 67) 537, 553; Christian Tomuschat, ‘Self-determination in a post-colonial world’ in Christian Tomuschat, (n
53 2.2 Post-colonial legal frameworks for external self-determination
The process of decolonization (1945-1970) impacted the legal understanding of external self-determination.194 Contemporary theorists advocate for a reconsideration of external self-determination as an ongoing right, opening channels for people within a state to play a more active, continuous role in the political governance of their state.195 It is evident that reforming the concept of external self-determination as a
continuous process of participation requires a democratic-based mechanism for assessing the will of the people.196
2.2.1 International Covenant of Civil and Political Rights 1966
From 1966 to 1970, there were two important legal frameworks to illustrate the right to self-determination as a ‘right belonging to all people’. The first was within the principle of Article 1 of the International Covenant of Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). Both covenants stipulated that “all peoples have the right to self- determination”.197 For the first time, the people’s right to freely determine their future was expressed in international law. Moreover the Article specifies this right as an ongoing one, not one which ends after independence is attained.198 If self- determination is understood as an ongoing right, then there is an implication that the people’s expressed will on public, political matters must be sought continuously. To illustrate this, public participation in democratic decision-making required the
194 Marc Weller, ‘Settling self-determination conflicts: Recent Developments’ (2009) 20(1)EJIL111, 113-114
195 Patrick Thornberry, ‘The Democratic or internal aspect of self-determination with some remarks on federalism’ in Christian
Tomuschat (ed.), (n 76) 101; Hurst Hannum, (n 192) 5
196 Helen Quane, (n 67) 537, 553; Simone Van den Driest, (n 127); European Court of Human Rights, Loizidou v. Turkey,
Application No. 15318/89, Judgment (Merits), 18 December 1996, Concurring opinion of Judge Wildhaber joined by Judge Ryssdal, para2
197 International Covenant on Civil and Political Rights 1966 (ICCPR) (n 40) art 1; International Covenant on Economic, Social
and Cultural Rights 1966 (ICESCR) (n 68) art 1
198 Dominic McGoldrick, (n 35) 249-250; Gregory H Fox, ‘The right to political participation in international law’ in Gregory
54 establishment of constitutional and political processes in each state.199 However,
Article 1 of the ICCPR does not spell out a democratic process. Article 1 is upheld by Article 25, however the latter goes one step further by mentioning the opportunity for this right to take place: “every citizen shall have the right and the opportunity … to take part in the conduct of public affairs”.200 This Article attempted to promote the link between self-determination and democracy as well as to provide some effective machinery for assuring self-determination and equal rights for people.201 The right to self-determination shifted away from the outcome and instead towards the procedural right belonging to all people.202
According to the Human Rights Committee General Comment number 25, the right to public participation should include the right to vote,203 and individual rights protection.204 During decision-making processes, the people’s freedoms of expression, assembly and association are essential conditions of the right to vote.205 Voters should be able to form opinions freely and independently; simultaneously, they should be free from any unlawful or arbitrary interference or coercive measures. Importantly, the General Comment number 25 allowed state parties to set certain standards limiting people’s right to vote with proportionate and reasonable cause. However, it did not clearly specify what this criteria could be. In 2002, according to Gillot v France, the Human Rights Committee confirmed the connection between the right to self-determination and the right to public political participation.206 Crucially, it also pointed out that restrictions on the right to vote may be imposed but only provided that they are not discriminatory based on people’s ethnic origin, place of birth, family
199 Human Rights Committee, ‘General Comment No. 12 Article 1 (n 40) para4 200 International Covenant on Civil and Political Rights 1966 (n 40) art 25
201 Thomas M. Franck, ‘The Emerging Right to Democratic Governance’ (n 10) 46,58 202 Rosalyn Higgins, (n 68) 118; Jan Klabbers, (n 68) 186,189
203 Human Rights Committee, General Comment No. 25 (57) (n36) para1 204 Ibid para3
205 Ibid para12
55 ties, descendent.207 If people are not able to prove a sufficient link to the territory, this
is considered to be a proportionate ‘cut-off point’ for taking part in an electoral process. These actions do not violate the right to political participation under Article 25(b) of the International Covenant on Civil and Political Rights (1966). After the ICCPR Covenant, its Articles and the interpretations contained in the General Comment, the right to self-determination for the first time could be defined as the right to public participation.208 These documents also provided a set of guidelines for procedural mechanisms required to carry out the practical application of external self- determination practices.
2.2.2 United Nations General Assembly Resolution 2625
The second framework was laid out in the UN General Assembly Resolution 2625 in 1970.209 It stated that it was the duty of international community to end colonialism and to permit each colonial territory to assume a political status freely determined by its inhabitants.210 In addition, the Resolution specified the protection of the territorial integrity of states. However, the ‘safeguard clause’ in principle 5 (7) noted that if a state complies with the principles of equal rights and self-determination for the people (in other words, ensuring the people are able to express their will freely and fairly) then no action should be taken which might destroy its territorial integrity.211 Thus the resolution argues that to help protect their own territorial integrity in the eyes of the
207Ibid para8.6
208 Dominic McGoldrick (n 35) 247-248; Human Rights Committee (n 36) para2, 6-8 209 UNGA Res 2625 (n 38)
210 UNGA Res 2625 (n 38) principle 5 para2
Every State has the duty to promote, through joint and separate action, the realization of the principle of equal rights and self- determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle in order:
(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;
and bearing in mind that subjection if people to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter of the United Nations.
211 James Crawford, (n 167) 118-121; Antonio Cassesse, (n 65) 120-121; David Raic, (n 65) 289; Christian Tomuschat, ‘Self-
56 international law, states must take responsibility for ensuring self-determination processes are legitimately and legally managed by a representative government.212
Clause 5(7) refers back to the normative principle of self-determination outlined by Wilson in 1918. According to him, the people are the source of all legitimate governmental power; state authority must be based on the will of the people.213
His
idealistic perspective214 was expressed by proposing the ideals of a democratic system and the popular sovereignty of the people. Thus, he argued over fifty years earlier than the UN Resolution that if a territory’s existing government represents the people appropriately then the international community should recognize any subsequent act of self-determination as a legitimate action.215 Between them, these two frameworks opened a channel to interpret self-determination as a procedural right belonging to all people, who are accepted as having constituent power over their territorial status.Since the development of the legal understanding of self-determination as a continuing right, certain institutions tries to develop the idea of public participation and the right to self-determination as established by these frameworks. There are two examples: the Badinter Commission Arbitration in 1991,216 and the guidelines in the European Commission for Democracy through Law (Venice Commission).217
212 UNGA Res 2625 (n 38) principle 5 para7
213 President Wilson’s Address to the Congress delivered in a joint session on 11 February 1918 analyzing German and Austrian
Peace utterances in paragraph 5 “….. Peoples are not to be handed about from one sovereignty to another by an international conference or an understanding between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self-determination" is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril.” <http://www.gwpda.org/1918/wilpeace.html> accessed 14 November 2013; David Raic, (n 65) 175
214 Michla Pomerance, (n 191) 3
215 Frederic L. Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’ (1994) 88(2) AJIL 304, 310; Lee C.
Buchheit, (n 124) 93
216 Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (16 December
1991) (1992) 31 I.L.M. 1494-1526
217 Venice Commission, ‘Self-determination and secession in constitutional law’ (10-11 December 1999) CDL-INF (2000);
Venice Commission, ‘Code of good practice in electoral matters’ (18-19 October 2002) CDL-AD (2002) 23 rev; Venice Commission, ‘Code of food practice on referendum’ (16-17 March 2007) CDL-AD (2007) 008
57 2.2.3 Badinter Commission Framework 1991
The Badinter Commission was set up by the Council of Ministers of the European Economic Community (EEC) on 27th August 1991. After releasing the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ in 1991, the Commission acted as a fact-finding body to assess whether the various republics in the former Yugoslavia had fulfilled the criteria for recognition. These guidelines recommended further conditions for recognizing a new independent state. The Declaration included the phrases,
“Respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;
Guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE;
Respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;
Acceptance of all relevant commitments with regard to disarmament and nuclear non- proliferation as well as to security and regional stability;
Commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes”.218
The Declaration stated that new states should be recognized in international law by their commitment to democracy.219 This was clarified in two fundamental points.
218 Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (n 216) 1485-
58 Firstly, new state-creation involves “a democratic procedure” required by international law. In other words, altering the legal status of a territory requires the expressed will of the people. Secondly, state-creation requires “democratic government structures” that adhere to a democratic political system which fully represents the people.220 Based on democratic procedural requirements, public participation is accepted as an ongoing process. Therefore by specifying that a new state must conform to the rules of democratic governance, the Badinter Commission emphasized that, to be accepted by international law, public participation in any territorial alteration process must be ongoing. In addition, the Badinter also attached human rights and minority rights protection as conditions of recognizing new states.221
The Badinter Commission clearly underlined the importance of continuous public participation in the decision-making process of territorial alteration. With reference to the recognition of Bosnia-Hercegovina,222 the Commission noted that:
“Under the constitution of Bosnia-Hercegovina as amended by Amendment LXVII, the citizens exercise their powers through a representative Assembly or by referendum”.
Thus the statehood of Bosnia-Hercegovina was not recognized because there had been an absence of public involvement in the decision-making process, and neither a
219 Jure Vidmar, (n 150) 8 220 Ibid 12
221 Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (n 216) 1485,
1487
Therefore, they adopt a common position on the process of recognition of these new states, which requires:
“respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights”; ……..
59 representative process nor a referendum had taken place.223 In addition, the
Commission warned that the will of the people must be clearly ascertained from the three different ethnic groups (i.e. Serbs, Croats, and Muslims) residing in the territory.224 This instance illustrates the significance, by international legal standards, of the expressed will of the people as integral component of external self- determination practices.
2.2.4 The European Commission for Democracy Through law Guideline 1999
The European Commission for Democracy through law (Venice Commission) released their reports to the Parliamentary Assembly Political Affairs Committee concerning the constitutional right to self-determination and secession in 1999. The commission report focused on the status of territorial integrity in constitutional law and the question of the constitutional right to self-determination. If there was no existing constitutional right to self-determination in a domestic law, secession was considered to be an illegal process.225 In addition, the Venice Commission played an important role in drafting the code of good practice concerning electoral matters in 2003226 and referendums in 2007.227 The Code of Good Practice on Referendums provides some guidelines on conducting referendums to a legitimate and accountable standard.228 Although the Venice Commission frameworks were not legally binding, it represents a significant contribution towards clarifying certain legal issues and advising on referendum mechanisms with respect to the interests of the people. Meanwhile, the main objective of the Code of Good Practice in Electoral matter was
223 Ibid para3 (b) 31 I.L.M. 1485, 1503 224 Ibid para3 (b)1 31 I.L.M. 1485, 1503
225 European Commission for democracy through law (Venice Commission) ‘Self-determination and secession in constitutional
law’ (n 217) 3
226 European Commission for democracy through law (Venice Commission) Code of good practice in electoral matters (n 217) 227 European Commission for democracy through law (Venice Commission) Code of good practice on referendums’ (n 217) 228 European Commission for democracy through law (Venice Commission) ‘Code of good practice on referendums’ (n 217) 8
60 to create advice about electoral processes, providing legitimate avenues for the expression of the people’s will. It consisted of five, fundamental principles of elections which should be taken into consideration: suffrage must be universal, equal, free, secret and direct.229 In order to provide free and fair elections, the Code also